Revolt at LADA Training

The Los Angeles County District Attorney’s Office will occasionally do a training on Saturday for its prosecutors. Since the election of George Gascón, topics have been on cultural rather than legal issues, such as Racial Justice and Transgender Awareness. This Saturday, even though LADA has 800 of the countries best prosecutors, Gascón brought in an outside person to train on opening statements and closing arguments. This was a particularly fraught time for the office, since the last Saturday seminar involved a lengthy and pointed question about the district attorney’s political policies which was censored out of a subsequent broadcast. That censored comment was by celebrated cold-case prosecutor John Lewin. This Saturday, Lewin’s skepticism broke out into an all out revolt.

The revolt took place in an online comment box. It started out gently at first, as prosecutors began to realize that they had more expertise than the trainer hired by the office.

The question was not answered live.

Bafflement over the rudimentary nature of the training and the speaker’s lack of experience continued.

This question was not answered live. Then John Lewin weighed in. He is a famous name in legal circles for convicting real estate tycoon Robert Durst of murder, after other agencies tried and failed for many years. He was the longest serving member of the office’s Major Crimes division. He’s media savvy, occasionally appearing on AM talk radio, and was the subject of an LA magazine cover story. When Gascon came to office, he busted Lewin out of Majors and sent him to Inglewood to file low level felonies. This was widely viewed as retaliation for Lewin’s outspoken criticism of the DA’s weakness towards violent criminals.

Lewin is referring to a recently 1.5 million dollar jury verdict awarded to Shawn Randolph, the former head of LADA’s Juvenile Division. The jury found that Gascón illegally retaliated against Randolph after she warned him that his policies were illegal and required prosecutors to lie in court. These are not private opinions or political statements, these are findings of fact by an impartial jury.

The presenter bumbled on, ignoring Lewin and giving advice about how to argue gang cases, apparently unaware that Gascón banned the filing of gang cases.

This question was not answered live.

This is true. Gascón’s special directives instruct his prosecutors to use the term “justice-involved individual.” The audience had apparently had enough. Political comments continued.

Members of the administration, or maybe one of the 2.5% of prosecutors that support Gascón, weighed in with this:

It is hard to tell if this is a tongue-in-cheek reference to the fact that the “several years” the presenter had been working were much fewer than the years of experience in the audience. Prosecutors passed over that point and responded:

Lewin also weighed in.

By the end of the training, Gascón (who has never tried a case) hadn’t won himself any friends.

This question was not answered live.

You Should Go to Jail Then

Robert Mueller doesn’t like defending the guilty.

Mueller, now 73, began his Department of Justice career in 1976 as an assistant US attorney in San Francisco, and during the decades that followed took only two breaks to try out the private sector, each lasting no more than a couple of years.  The stints were so short-lived because of a simple fact, according to Graff: Mueller couldn’t stand defending those he felt were guilty.  “He’ll meet with the client, they’ll explain the problem and he’ll say ‘Well, it sounds like you should go to jail then,'” Graff said. “There is not a lot of gray in Bob Mueller’s worldview.”

I think that this is a legitimate perspective.  People have an obligation not to work for bad causes.  You should not help people lie, cheat, and steal.  This concept even appears in our criminal law.  Accessories are persons who, knowing a crime has been committed, help the criminal get away with the crime.  The assistance to the criminal may be of any type, including emotional or financial assistance as well as physical assistance or concealment.  Obviously, the law provides an exception for a defense lawyer.  After all, when a defense lawyer exonerates an innocent person, we all benefit.  It’s hard to understate the good done by a defense lawyer in that situation.  But what good does a defense lawyer do when they try to exonerate the guilty?  Isn’t she just as immoral as an accessory without a law degree?

What if, through the skill of a lawyer, a guilty man goes free?  That is wrong.  And in that situation, the lawyer shares culpability with his client.  Take it a step further: what if the guilty client who has just been acquitted goes out and reoffends?  Isn’t the lawyer responsible for that as well?  What would the lawyer say to her client’s new victim?

I don’t think it’s necessary about having a moral compass or not having a moral compass. Defending criminal defendants, even ones that you are sure are guilty, is an important part of the system and integral to holding the government accountable.

This has the patina of reasonableness.  After all, who would want an unaccountable government?  But what exactly does that mean?  Does the government need to be “held accountable” when they have charged your guilty client and are seeking to convict him?  It’s one thing if the government is asking for an unfair punishment.  In that situation there’s nothing wrong with negotiating for a better one.  Sometimes prosecutors overcharge defendants.  There’s nothing wrong with fighting to narrow the charges.  But I’ve never been able to shake the feeling that trying to completely exonerate a guilty client is immoral.  And it seems like Robert Mueller agrees with me.

What Do Prosecutors Owe Defendants?

It’s always seemed a little funny watching a defendant who broke the law insist on strict compliance with the law by the police and prosecutor.  It’s kind of like someone covered in mud asking you to wash your hands before you touch him. Or watching a naked man insist that you cover up a little bit more because you’re embarrassing him.

A Fair Trial

The guilty defendant knows he broke the law.  The police that apprehended him and the prosecutor who filed a case against him know that the defendant broke the law.  And yet, again and again, I see defendants play this game in court.  It’s a game that’s so basic, so universally, that no one really talks about it.  The defendant will pour over the conduct of the police with a fine-toothed comb, looking for any violation of any law, no matter how tiny or irrelevant.  If he should find one, he will not speak to the officer about it, he will not make a personnel complaint, and he will not bring a civil suit.  Instead, he will insist that this violation should result in the complete dismissal of charges against him.  After all, he will tell you, you must have clean hands if you want to come in to criminal court.

He will never consider, and no one will point out, that the defendant’s hands are not clean.  To the contrary, he is, to use the analogy above, covered in mud.  When the prosecution begins, the defendant becomes a hawk-eyed guardian of the rules.  He insists on his rights, never mind the rights of the victims he trampled on, and the slightest hint of impropriety draws the most hysterical objections.  Many defense attorneys don’t see the irony in this type of behavior and go right along with it.

For an example, I once prosecuted a man, already a state prisoner, who convinced his wife to bring him marijuana during a conjugal visit.  Drugs in prison are a big problem, but this was marijuana after all, and I wanted to settle the case so that I could focus on more important ones.  The defendant was representing himself.  And he was burying me with paper.  He was writing motions claiming violations by everyone within a mile of the case.  Some of his complaints were based on rights that didn’t exist.  Others seemed to be copied from motions he found in the prison law library.  I reluctantly prepared responses to six of his motions, plus a discovery request, and appeared at a hearing.  The defendant served me with 6 more.  Exasperated, I asked to meet him in the interview room.  He told me he wanted a dismissal.  I told him no.  I tried to be as professional as possible.  Finally we got down to brass tacks, and he told me that he made a small mistake and wanted a small punishment.  I agreed, and drastically reduced my offer.  He thought it over, called it fair, and accepted.  Back out in the courtroom, with all him motions in front of me, I couldn’t help but feel like he had been a little hypocritical.

The hypocrite’s crime is that he bears false witness against himself. What makes it so plausible to assume that hypocrisy is the vice of vices is that integrity can indeed exist under the cover of all other vices except this one. Only crime and the criminal, it is true, confront us with the perplexity of radical evil; but only the hypocrite is really rotten to the core.

Hannah Arendt, On Revolution.

Although this behavior is frustrating, prosecutors owe defendants a fair trial.  They owe the community, which includes the defendants, compliance with the law, even when the defendant himself doesn’t have that value.  And not just compliance with the law, compliance with the spirit of the law as well.

A Different Kind of Right to Confrontation

William Hazlitt said, “a hypocrite despises those whom he deceives, but has no respect for himself. He would make a dupe of himself too, if he could.”  Preventing this is the second thing a prosecutor owes a defendant.

We owe the defendants a clear, unavoidable confrontation with the truth.  Everyone knows that the jury has the role of deciding what happened.  In essence, they say, “this is the truth about what happened.”  The idea of the jury as the arbiter of the truth has passed into cliche, as has the idea that the prosecutor’s role is to prove to the jury what truly happened, beyond a reasonable doubt.

But we have a different role as well.

For example, I sometimes listen to wiretaps.  When you listen to a wiretap, the dates of each call are organized in a spreadsheet.  You can listen to the first call after someone is arrested, and the most recent call made this morning, one after another.  I remember listening to a defendant who had assaulted his family with a machete.  In his first call after the incident, he candidly admits that he doesn’t know what happened because he was too drunk to remember.  As I continued listening to the calls the defendant’s attitude changed.  He became convinced that he acted in self-defense.  After about a month, he was adamant that he was attacked first.  After another month, the self-serving embellishments continued.  The lacerations suffered by the victims occurred through their own negligence.  The whole thing was a setup.  By the last call, the defendant had completely convinced himself that he was a martyr and would be acquitted.

This is a very human quality.  A steadfast, irrational belief that you are always right is a perverse form of psychological armor.  No one wants to believe they are a bad person.  Rather than confront hard truths about ourselves, and then make hard changes, we find it easier to deceive and excuse ourselves.

Part of the ritual of trial is, and must be, the destruction of these illusions.  If a defendant, like the one on the wiretap, will not confront their problems on their own, than the prosecutor must confront him.  In public, in front of the community, and with evidence.  In this way, the prosecutor helps to heal the defendant.  He destroys the walls of falsehoods and deception that the defendant uses to protect himself from the truth.  The prosecutor should not only prove the case, but take the defendant’s excuses from him and leave him, at least in his own mind, unable avoid the truth.  Even if the jury does not convict the guilty man, his own conscience may, and in this way some good is salvaged.

All mankind are stretching out their hands to you on every side.  Lives that have been ruined, lives that are on the way to ruin are appealing for some help; it is to you that they look for hope and assistance.  They are begging you to extricate them from this awful vortex, to show them in their doubt and disarray the shining torch of truth.

Seneca, Letters to Lucilius, Letter XLVIIIcZ

Annotations

An excellent essay on hypocrisy.

A study showing that hypocritical defendants were seen as more blameworthy and punished more severely.

Other less interesting things that prosecutors owe defendants:

  1. All sorts of evidence;
  2. Polite, professional treatment; and
  3. Respect for their constitutional rights.

Some things that prosecutors don’t owe defendants:

  1. The plea offer of their choice;
  2. Filing the least serious charge available;
  3. Investigating the defense case on behalf of the defense; and
  4. Impeachment evidence for defense witnesses.